LABOUR RELATIONSHIP AND LABOUR DISPUTE

Phuoc Nguyen Huu

3 years ago

Table of Contents

1. Definition of labour relationship and labour dispute

Labour relationship and labour dispute are two of the well-known and wide application interpretations of the Labour Code terms in legal documents related to the field of labour. In daily social relations, when the employer, organisations representing the parties and the competent State authority have hired, have employed, and have made wage payments with the employees, those are labour relationships[1]. Labour relationships comprise individual labour relationships and collective labour relationships.

When labour relationships arise the conflict of rights, obligations and interests between the parties during the process of establishing, implementing, or terminating the labour relationship, or a dispute between organisations representing employees, or any dispute arises from relationships directly relevant to the labour relationship, all of the above-mentioned conflicts arising could lead to a labour dispute[2].

2. The several types of labour disputes arising in the labour relationship

Labour disputes arising in the labour relationship are classified into two types, namely individual labour disputes and collective labour disputes.

Individual labour disputes are those disputes arising between the employee and the employer; between an employee and an enterprise or organisation sending the employee to work overseas pursuant to a contract; between a sub-leasing employer and the sub-leased employee;
Meanwhile, collective labour disputes are considered based on a conflict of rights or interests between one (1) or more representative organisations of employees and the employer or one (1) or more organisations of the employer.
Collective labour dispute about rights means a dispute between one (1) or more organisations representing employees on the one hand and the employer or one (1) or more organisations of the employer, on the other hand, arising in the following circumstances:

There are diverse ways of interpreting and implementing provisions in the collective labour agreement, internal labour regulations, regulations, or other lawful agreements;
There are diverse ways of interpreting and implementing provisions of the law on labour;
When the employer has discriminated against an employee, a member of the leadership of an organisation representing employees because of establishing, joining, or operating in a representative organization of employees. motion; interfere with and manipulate representative organizations of employees; breached the obligation to negotiate in goodwill.

Collective labour disputes about benefits comprise:

A labour dispute arising during the process of collective bargaining;
When one party refuses to negotiate or does not conduct negotiations within the time limit prescribed by law.

3. Principles, method, and order for resolution of labour disputes

When considering to resolve labour dispute, the competent authority and the parties in the labour relationship should keep in mind the following principles[3]:
Respect for the right of self-determination via negotiation of the parties during the process of labour dispute;
Paying attention to the resolution of a labour dispute via conciliation and arbitration based on respect for the rights and interests of the two parties to the dispute, respect for the common interests of society and ensuring there is no unlawful conduct.
Publicly, transparently, objectively, promptly, quickly, and lawfully.
Ensuring participation of the parties’ representatives during the process of labour dispute resolution.
A labour dispute is resolved by an authority, organisation or individual competent to resolve right after a request is made by the parties in the labour dispute or at the request of a competent agency, organization or individual and agreed upon by the disputing parties.

Besides, when a labour dispute is being resolved by a competent entity, organization or individual within the time limit prescribed by this Labour Code, neither party is permitted to act unilaterally against the other party.[4]

The methodology for the labour dispute shall comply with the principle as described above. Therefore, the parties could choose to resolve the labour dispute following one of two methods: (i) complaint method; and (ii) negotiation and conciliation or even initiate a lawsuit to request the individuals’ settlement and organisations competent to settle labour disputes.
Competent individuals and organisations to settle labour disputes[5] are recognised by the Labour Code 2019, including labour conciliators, labour arbitration Councils, and the People’s Court.

The labour complaint method[6] usually applied in such case the employee is suspended from work or has to pay compensation under material responsibility-related. If an employee is not satisfied with the fine, compensation, or decision issued by the employer, he or she has the right to complain.

Or the labour law also allows the parties to choose the remaining labour dispute resolution method as mentioned above and will be detailed below.

Regarding the order of settling labour disputes, although the Labour Code has classified between individual and collective labour disputes, in general, the order and procedures arise for the settlement of labour disputes still follow a general order, regulated by the Labour Code and the Civil Procedure Code, at each authority competent to settle labour disputes, specifically as follows:
Except for labour disputes that are not required[7] to pass through the labour dispute conciliation order and procedures of the labour conciliator. A typical conciliation process will include[8]:

Within five (5) working days after the date on which such conciliator receives the request from a party requesting dispute resolution or from the professional authority for labour under the people’s committee, then the labour conciliator must finalise the conciliation.
At a conciliation session, the two disputing parties must be present. They may appoint authorised representatives to participate on their behalf.
The labour conciliator is responsible for guiding and assisting the parties in their negotiations to resolve the dispute:

If the parties reach a settlement, then the labour conciliator shall prepare minutes of successful conciliation to be signed by the conciliator and the parties in dispute.

If the parties do not reach a settlement, the labour conciliator shall provide a conciliation proposal for consideration by the parties. If the parties agree to the conciliation proposal, then the labour conciliator shall prepare minutes of successful conciliation to be signed by the conciliator and the parties in dispute.

If the conciliation proposal is not agreed or if one of the parties has been validly summonsed twice but is still absent without a legitimate reason, then the labour conciliator shall prepare minutes of unsuccessful conciliation. The minutes are to be signed by the conciliator and by the party in dispute who was present.

Copies of successful conciliation minutes or unsuccessful conciliation minutes must be sent to the parties in dispute within one (1) working day after the date of preparation of such minutes.
If one of the parties fails to implement the agreement set out in the minutes of successful conciliation, the other party has the right to petition the labour arbitration Council or the Court to resolve the matter.
If it is not mandatory to conduct conciliation[9] or the time-limit for conciliation expires as prescribed in point (a) above a but the labour conciliator fails to conduct the conciliation, or if the conciliation was unsuccessful as referred to in point d as above, then the parties in dispute have the right to select either of the following methods to resolve the dispute:

To request the labour arbitrator Council to resolve the dispute; or
To petition the Court to resolve the matter.
In case the parties in the dispute request the labour arbitrator Council to resolve the labour dispute.

Please note that, if the request for labour arbitrator Council is made, the parties are not permitted to simultaneously petition the Court to resolve the matter, except for (i) the expiry of 07 working days from the date receiving the request, but the Labour Arbitration Board is not established; or (ii) after 30 days from the date of the Labour Arbitration Board establishment, if the Labour Arbitration Board does not issue a decision to settle the dispute, the parties have the right to request the Court to settle.

Based on consensus, the parties in dispute have the right to request the Labour Arbitration Council to resolve their dispute;
Within seven (07) working days after receiving a request to resolve the dispute, the Labour Arbitration Board must be established in order to resolve the dispute.
Within thirty (30) days after establishment, the Labour Arbitration Board must issue a decision on dispute settlement, and such decision must be sent to the parties in dispute.
If one of the parties fails to enforce compliance with the decision resolving the dispute made by the Labour Arbitration Board, then the parties have the right to petition the Court to resolve the matter.

For more details on the template to request for settlement of labour dispute, please refer to the book “Hard to find templates of Human Resource Relating to Labour Law” by Lawyer Nguyen Huu Phuoc on page 815.

Above is an overview article about the explanation of labour relationships and labour disputes. If you are having difficulty finding a lawyer to advise a resolution on labour disputes or seek legal advice related to labour relationships, please do not hesitate to contact us: please contact us: Phuoc & Partners is a professional consulting firm established in Vietnam and currently has nearly 100 members working in three offices in Ho Chi Minh City, Hanoi and Danang. Phuoc & Partners is also rated as one of the leading consulting firms specializing in business law in Vietnam that has leading practice areas in the legal market such as Intellectual Property, Labour and Employment, Taxation, Merger and acquisition, Litigation. We are confident in providing Clients with optimal and effective legal service.